Habush Habush & Rottier's $4 Million Settlement for a Worker Crushed by a Failed Excavator Coupler

In May 2004, a hydraulic quick coupler on an excavator failed at an E & W Excavating job in Vernon, Wisconsin. A quick coupler is the device at the end of an excavator boom arm that lets an operator swap attachments, most often the digging bucket, without doing the work by hand. On this machine the locking lever missed the link pin that was supposed to hold the bucket in place. The bucket released, fell, struck some debris, and landed on a worker who was near the machine.

That worker was Alan Szuta, 44, who worked for the excavating company. He was helping prepare the excavator for an oil change when the boom arm was repositioned and the coupler let go. The bucket crushed his middle and lower extremities, and the injuries were permanent.

The coupler was a first-generation Hendrix J.B. model, a design Hendrix had built since 1989 without a factory-installed mechanical lock pin to secure the attachment. The excavator had changed hands several times: LBX sold it in 1998, Con-Equipment bought it, Kelbe Bros. Equipment acquired it, and Kelbe sold it to E & W in October 2000. Around 2001 Hendrix began offering a free retrofit kit that added the missing safety lock, and Kelbe notified E & W that the kit was available. The machine was never retrofitted. By the time Szuta was hurt, it still had no lock pin.

Szuta and his wife, Selima, sued Kelbe Bros. Equipment and LBX Company on strict liability and negligence grounds, arguing that the coupler was defective and unreasonably dangerous as sold and that the sellers had not made sure the known safety fix was installed. Daniel A. Rottier and Christopher Rogers of Habush Habush & Rottier in Madison represented the couple.

Before the injury claims resolved, the insurers fought over coverage, and that dispute reached the Wisconsin Court of Appeals. In a decision dated July 8, 2009 (case 2008AP2037), the court affirmed summary judgment for two insurers, holding that policy language excluding first-generation couplers "that have not been provided with a mechanical lock retrofit kit" was unambiguous. The court read "provided" to mean actually supplied, not merely offered or made available by notice.

The coverage ruling did not touch the size of the recovery. The parties settled the underlying injury claims for $4 million, with a disposition date of October 2, 2009.